January 20, 2009

The title of this post is how long I've been working on this preposterous little project of mine as of today -- the day Barack Obama took office as the 44th President of the United States.

From the very beginning, I've been saying the hardest part of the project would come after Bush left office -- and nothing that's happened in the interval would make me suppose that was mistaken. The basic situation hasn't changed since 2002: the Bush gang has committed crimes against humanity and war crimes by policy, and made a concerted effort to subvert the laws of the United States in order to commit those crimes. They MUST be prosecuted -- that has been my objective from the beginning, and remains my objective today. Not for the sake of politics, malice, or spite, but for the sake of reason and the safety of the United States.

I believe Barack Obama is a good man with the makings of a great President. I've supported him from the start. He's made one big mistake so far -- keeping Gates as Defense Secretary. I understand the reasoning behind that decision, but it's still a mistake. I'm not going to lose any sleep over it -- there was going to be a huge learning curve at DoD in any case.

Then there's DOJ, and I'm very pleased with the appointments there so far -- the bad news is that they have a truly ghastly mess on their hands. It's going to be very interesting to see how they handle things going forward.

Then there's me... The reason I've been so quiet lately is that I've been very sick the last four months. The good news is that it's not as bad as I'd feared so far (knock on wood pending the results of a CT scan done last week), but but the bad news is that it's still not so good: mild to moderate emphysema, chronic laryngitis caused by acid reflux, and a nasty bit of pneumonia that now appears to be gone thanks to a double course of antibiotics. That leaves a "suspicious mass" in my left lung, hence the CT scan... but my theory is that it's related to the reflux and the pneumonia. At any rate, it is what it is, and I've actually improved quite a bit the last two weeks -- the laryngitis is much improved and I'm finally getting my appetite back from nearly zero a month ago.

The worst thing about it was that my ability to concentrate was greatly reduced and it all made me very lethargic, but that's improving too, just in time to try to figure out where things are going from here...

October 5, 2008

Back in July, former US Attorney General John Ashcroft testified to the House Judiciary Committee. One of the most remarkable statements he made came during questioning by Rep. Hank Johnson (D-GA 4th) at the end of the first session (starting at 2:49:23 of the C-Span video HERE):

REP. JOHNSON: As the Attorney General, you were the President's senior law enforcement officer, were you not?

AG ASHCROFT: I think it would be fair to say that.

REP. JOHNSON: And you, in that capacity then as senior law enforcement officer, you supervised the FBI?

AG ASHCROFT: The FBI is under the Justice Department. Now the Director of the FBI is independently appointed for a ten year term --

REP. JOHNSON: But you supervised --

AG ASHCROFT: Yes, I did -- and I was in the FBI every single day after nine- eleven, and most of them before then.

REP. JOHNSON: And you also oversaw terrorism prosecutions nation-wide, correct?

AG ASHCROFT: The US attorneys answer to the Attorney General --

REP. JOHNSON: Yes.

AG ASHCROFT: -- since about 1807.

REP. JOHNSON: But you would agree you oversaw terrorism prosecutions nation-wide?

AG ASHCROFT: Yes, sir.

REP. JOHNSON: and so therefore your position has always been that the Department of Justice would have to have a voice in the military tribunal process to try terrorism suspects, is that correct?

AG ASHCROFT: Uh --

REP. JOHNSON: That would have been your opinion -- yes or no?

AG ASHCROFT: Uh, that I had an interest in that, not that I had a right to insist that I have a voice.

REP. JOHNSON: But you felt strongly that, the office of the Attorney General being the senior law enforcement officer, and you overseeing the activities of the FBI and the terrorism prosecutions, that your office should have a voice in the military tribunal process. That's a fair --

AG ASHCROFT: I think there are some other things that are important. One, the military tribunals do not try criminal violations.

AG ASHCROFT: No, I'm not. The military tribunals try war crimes, and the Attorney General has no authority to try war crimes. He deals with the laws enacted by Congress.

That last statement was quite startling to me, because the Justice Department clearly has jurisdiction to enforce Title 18 of the US Code (Crimes), and 18 USC § 2441 (enacted in 1996 and expanded in 1997), applies specifically to war crimes.

18 USC § 2441(a) makes it an offense to commit a war crime "inside or outside the United States", whenever "the person committing such war crime or the victim of such war crime" is a US national or service-member as defined by 18 USC § 2441(b). Specific offenses are defined in 18 USC § 2441(c):

"As used in this section the term "war crime" means any conduct--

"(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

"(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

"(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

"(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians."

18 USC § 2441(c)(3) was revised by the Military Commissions Act ("MCA") to 'clarify' CA3 by limiting (c)(3) to 'grave breaches of CA3' as defined by a new sub-section, 18 USC 2441(d). What I want to look at here is 18 USC § 2441(c)(2) as it refers to art. 23[h] of the Hague IV (1907) Annex of Regulations ("HR"). The revision of 18 USC 2441(c)(3) is irrelevant in that context, but it should be carefully noted that sub-sections (c)(1), (c)(3) as originally adopted, and (c)(4) each contain language specific to a particular treaty being in force for the US, but (c)(2) makes direct reference to HR (the Hague IV 1907 annex of regulations) without further qualification. The importance of this point is obvious from the administration's claims regarding (c)(2)...

"With respect to the Hague Convention IV, section 2441(c)(2) criminalizes conduct barred by articles 23, 25, 27, 28, of the Annex to the Hague Convention IV. Under the Hague Convention, the conduct in these articles, like all of the regulations the Annex contains, is prohibited solely as between parties to the Convention. Hague Convention IV, art. 2 ("The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention."). Since Afghanistan is not a party to the Hague Convention IV, no argument could be made that the Convention covers the Taliban. As a non-state, al Qaeda is likewise not a party to the Hague Convention IV. Moreover, Hague Convention IV requires that belligerents meet the same requirements that they must meet in order to receive the protections of GPW, which al Qaeda, and the Taliban do not meet. Thus, conduct toward enemy combatants in the current war would not fall within the conduct proscribed by these articles."

John C. Yoo, memorandum for William J. Haynes II, MILITARY INTERROGATION OF ALIEN UNLAWFUL COMBATANTS HELD OUTSIDE THE UNITED STATES, OLC (2003.03.14) ("Torture Memo"), at 33, footnote 39.

That argument derives from Yoo's memos in 2001-2; the memo quoted above has since been rescinded on other grounds, but gives one the most detailed expressions of their arguments regarding §2441(c)(2). A major defect is that §2441(a) and (b) provide jurisdiction whenever an offense is committed 'inside or outside the US by or against a US national', not 'whenever such an offense would violate a treaty in force for the US'; and while the other three sub-sections (including (c)(3) as originally enacted) all make specific reference to treaty status, §2441(c)(2) does not.

A second point is that any determination of whether or not H.IV itself applies to a particular case requires, as Yoo says above, "that belligerents meet the same requirements that they must meet in order to receive the protections of GPW," and under H.IV those requirements are stated in arts. 1, 2, and 3 of HR, not the convention proper. Hence, had the intent of Congress been what Yoo claims, they would have had to list HR arts. 1, 2, and 3 in addition to the four listed by the statute. The statute is plainly being misconstrued, because (c)(2) clearly adopts the four listed articles of HR by direct reference without regard to the status of H.IV.

Just as telling is the fact that the Nazi defendants at Nuremberg raised exactly the same argument Yoo does, but the judgment of the tribunal held that HR had the force of customary law (the tribunal's ruling on that point is quoted in full in the notes below).

So contrary to the administration's arguments, 18 USC 2441(c)(2) has full force without regard to the treaty status of H.IV, and HR art. 23[h] states:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."

While HR art. 23[i] states:

"A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war."

The significance of 23[h] to the habeas cases is obvious: the express purpose of the government from the outset has been to deny the detainees any rights at all. The significance of 23[i] to the government arguments regarding their need for information extracted by systematic abuse and torture is equally apparent. These are crimes pursuant to 18 USC § 2441(c)(2), and the role of Mr. Yoo's memos as pretexts for those crimes is absolutely clear.

And there are now four decisions which confirm that the administration's detainee policies are in violation of 18 USC § 2441(c)(2): Boumediene (detainees have the right to habeas); Hamdan (Gitmo military commissions are illegal; and the DDC opinions by Judge Green in In re Gitmo (5th amendment protects all detainees), and Judge Robertson in Hamdan (detainees have POW status under GPW arts. 4-5).

"18 U.S.C. § 2441(c)(2) defines as a war crime any conduct prohibited by arts. 23, 25, 27, or 28 of HR. Regarding due process, HR art. 23 states in significant part: "In addition to the prohibitions provided by special Conventions, it is especially forbidden . . . [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party." The court below went to extreme lengths to deny Hamdi any meaningful protection of his rights, and unless he has absolutely no rights at all, their decisions were not merely incorrect, they were violations of 18 U.S.C. § 2441."Id., at 10-11

"There is nothing appropriate about evading or violating the law, nor anything necessary in abusing a prisoner who is hors de combat. There is nothing new here: the value of intelligence and the infliction of atrocities on ones enemies are as old as war itself. The President might plausibly suppose there was some advantage to be had by roasting a few of these "detainees" alive over an open fire, thinking it might lead others to cooperate -- such "time-honored" practices are as common in history as wars are. Would the Fourth Circuit defer to that as well? And if not, why not? Are we to understand that some of our laws are better than others, and our judges and elected officials are at liberty to choose which to obey according to their personal sensibilities?

"The government has gone to great lengths to avoid any accountability to the law here, and all their arguments reduce to a single theme: that in a war the President may do whatever he pleases as long as the Congress is willing to go along with him. But the Congress is not the Roman Senate, the President is not a Roman Imperator, and it is precisely this sort of arbitrary and absolute exercise of power unrestrained by the rule of law that our Constitution, our laws, and the Geneva Conventions are intended to prohibit and prevent."Id., at 11-12

"[O]n information and belief, and subject to the penalties for perjury in the U.S Code, amicus hereby solemnly affirms:

(a) That there is probable cause to believe that Respondents are engaged in a conspiracy to commit war crimes pursuant to 18 USC § 2441 (War crimes), 18 U.S.C. § 371 (Conspiracy to commit offense or to defraud United States), GPW, GC, CA3, and HR.

(b) That the petitions in these cases exhibit prima facie evidence of those crimes, including, but not limited to, unlawful detention, inhumane and degrading treatment, extra-judicial punishments, denial of lawful due process, unlawful coercive interrogations, unlawful deportations, and trials before unlawfully constituted tribunals.

(c) That the only purpose of the Respondents and counsel for Respondents in these cases is to deny the Petitioners / Plaintiffs their lawful rights and due process, which constitutes an offense pursuant to 18 USC 2441(c)(2) per HR art. 23(h).

(d) That in addition to the Respondents named herein, Richard Cheney, the Vice President of the United States, and John Ashcroft, the Attorney General of the United States are principals or co-conspirators in these crimes.

(e) That all of the criminal acts alleged were committed under a false color of authority in the PMO by the direct authorization of the President.

"With the release of the now infamous Yoo and Bybee memos, originating from the DOJ Office of the Legal Counsel (OLC), and the White House memo on which the 2/7/2002 "Fact Sheet" was based (signed by Alberto Gonzales, counsel to the President, but in fact authored by David Addington, counsel to the Vice President), my analysis of the events was fully confirmed, namely, that the Respondents herein have been engaged in a conspiracy to violate Geneva 1949, Hague 1907, and 18 USC § 2441 from the beginning, and that from the beginning, they have been operating under a false color of authority in the AUMF and PMO."Id., at 8-9.

* TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (The Blue Set), Volume 22, "The Law Relating to War Crimes and Crimes against Humanity," at 495-497 (30 Sept. 1946):

"(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

"(c) Crimes against Humanity; namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated."

As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6(a), dealing with Crimes against Peace.

The Tribunal is of course bound by the Charter, in the definition which it gives both of War Crimes and Crimes against Humanity. With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article 6, section (b) of the Charter were already recognized as War Crimes under international law. They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.

But it is argued that the Hague Convention does not apply in this case, because of the "general participation" clause in Article 2 of the Hague Convention of 1907. That clause provided:

"The provisions contained in the regulations (Rules of Land Warfare) referred to in Article I, as well as in the present convention, do not apply except between contracting powers, and then only if all the belligerents are parties to the convention."

Several of the belligerents in the recent war were not parties to this convention.

In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt "to revise the general laws and customs of war," which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter.

A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.

With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they-were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.

See especially the argument at 2-8 that the courts have no jurisdiction to consider any detainee motion outside the scope of "core habeas", which was adopted by Judge Hogan in a recent opinion on a similar motion:

And here are some thoughts of mine as to why that argument is wrong...

1) An injunction is equitable relief, and to restrict such relief in advance of the particular facts of a given case is inherently inequitable.

2) The Suspension Clause grants Congress authority to suspend habeas, not to suspend the jurisdiction of the courts pursuant to Art. III § 2 in "all cases, in law and equity, [etc.]" The "original meaning" of equity is just as significant here as that of habeas, and distinct from the common law (law AND equity).

3) Congress might create a separate court to hear matters of equity similar to the English Court of Chancery, but that's never been the approach in the federal courts, and only a few states do so, notably Delaware. See Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429 (2003), available at SSRN: http://ssrn.com/abstract=421320

It was manifestly not the intent of the MCA to do that, and for its part, the government now argues that the D.C. Circuit DTA / MCA process is superfluous.

4) I take it that Justice Kennedy meant exactly what he said about both 28 USC § 2241(e)(1) **AND** (e)(2).

"We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U.S.C.A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court." Boumediene at 2.

"Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as "the great and efficacious writ, in all manner of illegal confinement"); see also Schlup v. Delo, 513 U.S. 298, 319 (1995) (Habeas "is, at its core, an equitable remedy"); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (Habeas is not "a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose")." B. at 50-51.

5)(a) The standard of review going forward must provide "meaningful opportunity" while guarding against "real danger". It's trivial to note that some defendants are too dangerous to be granted bail for example, or that some adults are incompetent to act in an adult capacity for another; the courts adjudicate such matters all the time. Equally, the only process that would be meaningful to an innocent or a torture victim would be one that vindicates them against their accusers and tormentors.

"We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. St. Cyr, 533 U.S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained -- though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. [Ex parte Bollman, 4 Cranch 75, 136 (1807).]" B. at 50.

"The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security." B. at 68.

5)(b) Since "the status of these detainees is a matter of dispute", it cannot be the case that there is any basis for the court to assume in advance of the facts that any of the detainees are subject to ANY provision of 28 USC § 2241(e), especially when the Supreme court has already held that the whole of 2241(e) is unconstitutional without qualification and stated explicitly that "[t]hese and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."

There was no need for the Supreme Court to consider the reach of the writ further because that is a task for the lower courts to address "consistent with this opinion."

"The [Suspension] Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account." B. at 15.

"[W]e conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

"Applying this framework, we note at the onset that the status of these detainees is a matter of dispute." B. at 36-37.

"We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees' habeas corpus proceedings. * * * These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance." B. at 67-68.

"It bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

"The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion." B. at 69-70.

6) The detainees retain their ordinary civil capacities absent a valid court order to the contrary: they are not convicted criminals. The government has made much of their right to consent to counsel, and it's difficult to see where they wouldn't equally have the right to informed consent regarding medical care.

7) The imposition of legal penalties by legislative fiat is attainder.

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

August 9, 2008

I've been sort of on tilt lately -- lots going on, lots to think about, and no way to even begin figuring out where things really stand until after the elections. So here are some quick thoughts by way of clearing my head to look at some specifics going forward.

The only thing that matters in the elections is defeating the Republicans. There are no other issues: the Republican Party is a criminal organization, and we can't stand another Republican appointment on the Supreme Court.

We need to increase the Democratic majorities in both house of Congress as much as possible. The good news is that if the public had an objective understanding of the situation, not a single Republican would win; the bad news is that the public is obviously far short of being well-informed, let alone objective. Nevertheless, the situation is very favorable.

The Bush administration's brief in the detainee cases consists of two parts: the part that has broad support in the Republican caucus, and the part Cheney and Addington have been shoving down throats for six and half years. All of it is unlawful.

The thing I most dislike about McCain is that he was willing to go along with them for the sake of his political ambitions -- he is a victim of torture and war crimes who was willing to aid and abet torture and war crimes.

The Bush detainee policies will not survive in the next administration. Under Obama they will change a lot, but even McCain will change some things. After the elections, we will see where things stand.

I'm not willing to compromise on anything at this point. Obama's job is to win, and if he does, then every issue should be looked at with fresh eyes and an open mind.

Iraq must end ASAP. If it was up to me, I'd order an evacuation in 16 weeks, not 16 months. Anyone who thinks the surge was a "success" is a fool: success isn't possible when there's nothing to gain.

In Afghanistan, we should either pacify the tribal areas of Pakistan and get out ASAP (leaving the occupation to Pakistan), or get out now ASAP.

Terrorism is a crime, that's all that it is, and approaching the problem as a war is self-defeating -- witness the disgraceful, pointless failures and war crimes of the last six and half years.

July 17, 2008

The latest PEGC Update (2008.07.17) includes C-Span video links and reporting for two hearings of the House Judiciary committee -- the first, a sub-committee hearing with former Asst. Secretary of Defense Douglas Feith; the second, a hearing of the full committee with former Attorney General John Ashcroft. There wasn't much new, just the same old mix of lies and fallacious reasoning, but together they gave a pretty thorough (if somewhat confused) account of the administration's sundry excuses and shams. Now that's a topic I've been working on a bit myself lately in the aftermath of Boumediene, just trying to sort through where the issues stand, and I've had it in mind to do a series of posts on the various issues in the detainee cases moving forward -- the reason I decided to do a little blogging.

I'm going to start with the central topic of Tuesdays hearing with Prof. Feith -- central in the sense that most of Feith's arguments revolved around it even though the questioning never quite managed to reach the nuts and bolts of the thing. (My greatest frustration with these hearings and the standard five-minutes-per-member format they employ is how routinely they fail to do so.) What it all comes down to for Feith is the February 7, 2002 Bush order that allegedly required the "humane treatment" of detainees "consistent" with Geneva, a topic I've written about before... exactly five years ago; see: Jennifer Van Bergen & Charles Gittings, BUSH WAR: MILITARY NECESSITY OR WAR CRIMES?, truthout (2003.07.14) Since then, the memos on which the order was based have been released, in particluar, OLC Memo, APPLICATION OF TREATIES AND LAWS TO DETAINEES (Yoo draft, 2002.01.09); for the other memos in the series, see the PEGC History Page starting at 2002 (and just before). Here I want to zero in on the fatal defect.

"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

At the outset, two premises apply to an analysis of that order:

1. It is a fundamental breach of military duty to either issue or obey an unlawful order.

2. It is a fundamental breach of military discipline to act on an order which you do not understand.

The first is clear. The second simply observes that you can't do a thing unless you know what it is you're supposed to do; and if you don't understand an order, you're supposed to ask for a clarification. If you're ordered to attack some particular target, but the identification of it is ambiguous, it might be the case you would make your best guess if you knew the attack was expected in support of further operations which couldn't be delayed or recalled; but in that case, you are acting on the part of the order you do understand in the belief the risk of attacking the wrong target is out-weighed by the risks of not attacking at all; in an alternative, the intent of the attack might be diversionary, leading you to suppose the precise target didn't matter.

So what is the meaning of the Geneva Order?

Clearly, everything at OMC and Gitmo is subject to that order, since it applies to all detainees. "Consistent with Geneva" is clear enough, so the question goes to military necessity, which is a term of art with a precise meaning in military law:

military necessity"(DOD, NATO) The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war."

Any trial can potentially inflict inhumane treatment -- the panel might be ordered to find a defendant guilty without regard for the evidence for instance -- and the detention for trial can as well, obviously.

So the difficulty is this: how is military necessity per se applicable to a prisoner who is "hors de combat" (out of action)?

The laws of war forbid attacks on places which are undefended, and equally, all intentional abuse of detainees. It's difficult to see how ANY consideration of military necessity would apply to a detainee, and if that's the case, then the order essentially reduces to "we will obey Geneva unless we violate it".

Which brings a third premise:

3. An order which fails to state a definite object is 'void for vagueness'.

The Geneva Order fails to state any concrete object, while at the same time it presupposes an understanding of what "humane treatment" and "military necessity" mean. It ordered nothing, it was just a fraudulent smokescreen for committing war crimes against prisoners. If Mr. Feith (or Mr. Bush for that matter) want us to believe the order actually meant something, they could prove it easily simply by telling us what it means in plain English. Instead, they've spent six years trying to cover up their crimes and their lies.

"14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

"15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

"16. Military necessity does not admit of cruelty -- that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult."

"The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation's armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65-70; see also 415 F.3d 33, 44 (CADC 2005)(Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, "[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, 3318, T.I.A.S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821."

- Habeas venue lies in the district with jurisdiction over the custodian.

* RASUL v. Bush, 542 U.S. 466 (2004).

- Guantanamo Bay is de facto US territory subject to Article III jurisdiction.

- Detainees have a statutory right to habeas p. 18 USC 2241.

- Proper venue for detainees not present in the US is the USDC D.D.C.

* HAMDI v. Rumsfeld, 542 U.S. 507 (2004).

- US citizen on US soil has due process right to impartial review of detention.

* HAMDAN v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004).

- Hamdan has POW status under GPW art. 5, and may only be tried by a properly constituted court-martial under the UCMJ.

* KHALID v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).

- Granted government motion to dismiss; reversed by BOUMEDIENE.

* IN RE GUANTANAMO DETAINEE CASES, 355 F.Supp.2d 443 (D.D.C. 2005).

- All detainees protected by 5th Amendment.

- Al Qaeda detainees not protected by Geneva.

* HAMDAN v. Rumsfeld, 548 U.S. 557 (2006).

- Hamdan is protected by CA3 at the minimum.

- Whether Hamdan is protected by CA2 or CA3 was not resolved.

- Military commissions are invalid under CA3.

* BOUMEDIENE v. Bush, 553 U.S.___ (2008).

- Detainees are entitled to seek habeas.

- DTA review procedures are an inadequate substitute for habeas.

- Detainees need not exhaust the review procedures in USCA D.C. Cir. before proceeding with their habeas actions in USDC D.D.C.

- MCA §7, 28 U.S.C.A. § 2241(e)(Supp. 2007) is unconstitutional.

- Both the DTA and the CSRT process remain intact.

- Executive branch is entitled to a reasonable period of time to determine a detainee's status before a court entertains a habeas petition.

3) CITATIONS

* PADILLA

"District courts are limited to granting habeas relief 'within their respective jurisdictions.' 28 U.S.C. § 2241(a). We have interpreted this language to require 'nothing more than that the court issuing the writ have jurisdiction over the custodian.' Braden, 410 U. S., at 495. Thus, jurisdiction over Padilla's habeas petition lies in the Southern District only if it has jurisdiction over Commander Marr. We conclude it does not. Congress added the limiting clause -- 'within their respective jurisdictions' -- to the habeas statute in 1867 to avert the 'inconvenient [and] potentially embarrassing' possibility that 'every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.' Carbo v. United States, 364 U. S. 611, 617 (1961). Accordingly, with respect to habeas petitions 'designed to relieve an individual from oppressive confinement,' the traditional rule has always been that the Great Writ is 'issuable only in the district of confinement.' " Id. at 618."

"The District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition. We therefore reverse the judgment of the Court of Appeals and remand the case for entry of an order of dismissal without prejudice."

Id. at 451.

* RASUL

"In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians. Cf. Braden, 410 U. S., at 495. [18 USC § 2241], by its terms, requires nothing more. We therefore hold that § 2241 confers on the [US District Court for the District of Columbia] jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base."

"At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an 'enemy combatant' and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."

"Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fifty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in a few specific areas, and because nothing in the Third Geneva Convention itself manifests the contracting parties' intention that it not become effective as domestic law without the enactment of implementing legislation, I conclude that, insofar as it is pertinent here, the Third Geneva Convention is a self-executing treaty. I further conclude that it is at least a matter of some doubt as to whether or not Hamdan is entitled to the protections of the Third Geneva Convention as a prisoner of war and that accordingly he must be given those protections unless and until the 'competent tribunal' referred to in Article 5 concludes otherwise. It follows from those conclusions that Hamdan may not be tried for the war crimes he is charged with except by a court-martial duly convened under the Uniform Code of Military Justice."

"[T]o the extent these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards these detainees. The extent to which these rights and conditions should be modified or extended is a matter for the political branches to determine and effectuate either through Constitutional amendments, federal laws, or treaties with the appropriate international entities. Thus, until Congress and the President act further, there is similarly no viable legal theory under international law by which a federal court could issue a writ. Accordingly, for this and all the reasons stated above, the [government's] motion to dismiss must be granted."

"In sum, there can be no question that the Fifth Amendment right asserted by the Guantanamo detainees in this litigation 'the right not to be deprived of liberty without due process of law' is one of the most fundamental rights recognized by the U.S. Constitution. In light of the Supreme Court's decision in Rasul, it is clear that Guantanamo Bay must be considered the equivalent of a U.S. territory in which fundamental constitutional rights apply. Accordingly, and under the precedent set forth in Verdugo-Urquidez, Ralpho, and the earlier Insular Cases, the respondents' contention that the Guantanamo detainees have no constitutional rights is rejected, and the Court recognizes the detainees' rights under the Due Process Clause of the Fifth Amendment."

"Clearly, al Qaeda is not a 'High Contracting Party' to the [Geneva] Conventions, and thus individuals detained on the ground that they are members of that terrorist organization are not entitled to the protections of the treaties."

Id. at 479.

* HAMDAN

"The conflict with al Qaeda is not,according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to 'all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.' 6 U.S.T., at 3318. Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a 'High Contracting Party' -- i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.

"We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a 'conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply,as a minimum,' certain provisions protecting '[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by ... detention.' Id. at 3318. One such provision prohibits 'the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.' Ibid."

"[T]he Government's view is that the Constitution had no effect [in Guantanamo Bay], at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

"Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.' Murphy v.Ramsey, 114 U.S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say 'what the law is.' Marbury v. Madison, 1 Cranch 137, 177 (1803).

"These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."

"We hold that Art. I, § 9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause." Cf. Hamdi, 542 U.S., at 564 (SCALIA, J., dissenting) ('[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ'). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan, 548 U.S., at 585, n.16 ('[A]bstention is not appropriate in cases ... in which the legal challenge 'turn[s] on the status of the persons as to whom the military asserted its power '(quoting Schlesinger v. Councilman, 420 U.S. 738, 759 (1975)). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention."

Id. at 41.

"We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law. St. Cyr, 533 U.S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained -- though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted."

Id. at 49-50.

"The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release."

Id. at 58.

"Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U.S.C.A. § 2241(e)(Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant's habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status."

Id. at 66-67.

4) LEAD CASES GOING FORWARD

1:02-cv-00828 (CKK), AL ODAH v. UNITED STATES <1> <2>

1:04-cv-00547 (JDB), KHADR v. BUSH <1> <3>

1:04-cv-01142 (RJL), KHALID v. BUSH

1:04-cv-01519 (JR), HAMDAN v. RUMSFELD; CAD (DTA) No. 07-05042 <3>

1:08-mc-00442 (TFH), IN RE: GUANTANAMO BAY DETAINEE LITIGATION <4>

KSM et al. <3>

Notes:

1 - Assigned for coordination per order of D.D.C. executive session (TFH):

2 - AL ODAH is the senior docket now, as the last detainee in RASUL was David Hicks, who was repatriated to Australia last year.

3 - "Military Commission" pending.

4 - Special docket for coordinating cases under Judge Hogan.

(4) D.D.C. JUDGES

JUDGE THOMAS F. HOGAN (In re Guantanamo Detainee Litigation)

Judge Hogan was appointed to the United States District Court in August 1982 and became Chief Judge on June 19, 2001. He graduated from Georgetown University, receiving an A.B. (classical) in 1960. He attended George Washington University's masters program in American and English literature from 1960 to 1962, and he graduated from the Georgetown University Law Center in 1966, where he was the St. Thomas More Fellow. Following law school, Judge Hogan clerked for Judge William B. Jones of the U. S. District Court for the District of Columbia from 1966 to 1967. He served as counsel to the National Commission for the Reform of Federal Criminal Laws from 1967 to 1968, and was engaged in private practice from 1968 to 1982. He has been an adjunct professor of law at the Georgetown University Law Center and a Master of the Prettyman-Leventhal Inn of Court. He is Chair of the Executive Committee of the U.S. Judicial Conference, Chair of the Courtroom Technology Subcommittee, and served on the Board of the Federal Judicial Center.

JUDGE JAMES ROBERTSON (Hamdan)

Judge Robertson was appointed United States District Judge in December 1994. He graduated from Princeton University in 1959 and received an LL.B. from George Washington University Law School in 1965 after serving in the U.S. Navy. From 1965 to 1969, he was in private practice with the law firm of Wilmer, Cutler & Pickering. From 1969 to 1972, Judge Robertson served with the Lawyers' Committee for Civil Rights Under Law, as chief counsel of the Committee's litigation offices in Jackson, Mississippi, and as director in Washington, D.C. Judge Robertson then returned to private practice with Wilmer, Cutler & Pickering, where he practiced until his appointment to the federal bench. While in private practice, he served as president of the District of Columbia Bar, co- chair of the Lawyers' Committee for Civil Rights Under Law, and president of Southern Africa Legal Services and Legal Education Project, Inc.

JUDGE RICHARD J. LEON (Khalid & Boumediene)

Judge Leon was appointed to the United States District Court in February 2002. He received his A.B. from Holy Cross College in 1971, his J.D. cum laude from Suffolk Law School in 1974, and his LL.M. from Harvard Law School in 1981. Immediately prior to his appointment to the bench, Judge Leon was engaged in private practice in Washington, D.C., as a partner in the Washington office of Baker & Hostetler (1989-1999), and Vorys, Sater, Seymour and Pease (1999-2002). Prior to and while in private practice, Judge Leon served as counsel to Congress in the investigations of three sitting Presidents. In 1987, he was the Deputy Chief Minority Counsel for the U.S. House Select "Iran-Contra" Committee. From 1992-1993, he was the Chief Minority Counsel to the U.S. House Foreign Affairs Committee's "October Surprise" Task Force. In 1994, Judge Leon was Special Counsel to the U.S. House Banking Committee for its "Whitewater" investigation. He also served in 1997 as Special Counsel to the bipartisan U.S. House Ethics Reform Task Force. Earlier in his career, Judge Leon served at the U.S. Department of Justice in a number of positions including Deputy Assistant Attorney General in the Environment Division, Senior Trial Attorney in the Criminal Section of the Tax Division, and as a Special Assistant United States Attorney in the Southern District of New York. He also served as a Commissioner on the White House Fellows Commission and the Judicial Review Commission on Foreign Asset Control. A former full-time law professor at St. John's Law School (1979-1983), Judge Leon is currently an adjunct law professor at the Georgetown University Law Center and the George Washington University Law School.

CHIEF JUDGE ROYCE C. LAMBERTH

Judge Lamberth received his appointment to the United States District Court for the District of Columbia in November 1987. He was appointed Presiding Judge of the U.S. Foreign Intelligence Surveillance Court in May 1995 by Chief Justice Rehnquist.

Judge Lamberth graduated from the University of Texas and from the University of Texas School of Law, receiving an LL.B. in 1967. He served as a captain in the Judge Advocate General's Corps of the United States Army from 1968 to 1974, including one year in Vietnam. After that, he became an Assistant United States Attorney for the District of Columbia. In 1978, Judge Lamberth became Chief of the Civil Division of the U.S. Attorney's Office, a position he held until his appointment to the federal bench.